D was unanimously convicted on two counts of trafficking in dangerous drugs after trial before a Judge and a jury in the High Court. Police officers apprehended D outside a flat of which D was a tenant. Dangerous drugs were seized from D and inside the flat. It was alleged that D made a verbal admission under caution when he was arrested, which D denied. D argued that he was “set up” by the police and was assaulted by the police outside and inside the flat, and later at the police station. At the pre-trial review, the Judge was persuaded that a voir dire in relation to the alleged verbal admission was not necessary. However, in view of D’s allegations against the police, the matter unravelled at the trial, resulting in defence counsel having to make an application, while D was giving evidence, to hold a voir dire in front of the jury, which the Judge allowed. Submissions were subsequently made in the absence of the jury as to the admissibility of the alleged verbal admission, and the Judge ruled that it had been made voluntarily. There was nonetheless no discussion between counsel and the Judge prior to the summing-up as to how she should direct the jury on the alleged verbal admission; and the Judge did not give a Mushtaq direction in her summing-up. D sought leave to appeal against his conviction on the ground inter alia that the Judge failed to give a Mushtaq direction in relation to the alleged verbal admission. The respondent conceded that the conviction could not stand on the basis of that ground.
Held, granting leave to appeal, allowing D’s appeal and ordering a retrial on a fresh indictment before another judge, that:
- Where the defence were effectively saying that no admission was made at all but that, if it was found to have been made, it was made in circumstances of impropriety, the questions of voluntariness and admissibility were engaged and a voir dire was required. Both trial counsel were unaware of the relevant judicial authorities and erred in their understanding of the law in suggesting otherwise at the pre-trial review. This situation could have been saved by the giving of a Mushtaq direction in the summing-up, but this was not done. The respondent’s concession was properly made (Thakoen Gwitsa Thaporn Thongjai v The Queen  HKLRD 678, Cletus Timothy v The State  1 WLR 485, HKSAR v Pang Hiu San (2014) 17 HKCFAR 545 applied). (See para.23–27.)
- Discussions between the judge and the counsel before the summing-up in respect of the legal directions that should be given to the jury should normally take place at every trial before a judge and jury, and it was desirable that a specific occasion was set aside for such discussions. If circumstances permitted, counsel could be required to file the proposed legal directions with the court in advance. Second, counsel should be prepared for these discussions, knowing that what they said during such discussions would, if the case was appealed, be the subject of close scrutiny by the Court of Appeal. Third, prosecuting counsel should provide every assistance to the judge which must be reflected by their pro-active involvement in these discussions. Fourth, defence counsel must ensure that they clearly articulate not only the issues, defences and alternative verdicts on which jury directions were sought, but also those which were not being relied upon but may be raised by the evidence. Both prosecuting and defence counsel must carefully follow the judge’s summing-up to the jury, in order that they were in a position to draw to the judge’s attention any issues or errors that may occur. (See para.28–33.)
Application for leave to appeal against conviction
This was the defendant’s application for leave to appeal and substantive appeal against convictions for trafficking in dangerous drugs imposed by Esther Toh J in the Court of First Instance (see  HKEC 2207).